5.1. SR 08-15-2011xl~"7
Supplemental Memo to Items 5.1. & 5.2.
MEMORANDUM
ver
TO: City Council
FROM: Jeremy Barnhart
DATE: August 15, 2011
SUBJECT: Variance Ordinance and Hendricloc Application -Items 5.1. &
5.2.
The Council's review of the draft variance ordinance (5.1 on the agenda) and the appeal of
the Hendricks variance (5.2) requires some clarification.
Because the City Council had not amended the Ordinance, the Boatrd of Appeals on August
9 reviewed the Hendrickx variance based on the existing standards outlined in Section 30-
635. The Board denied the application because they felt it did not meet all the variance
criteria.
It is expected that the City Council will approve the variance ordinance amendment (5.1).
If this occurs, the Council should either review the variance based on the new criteria, or
remand the decision back to the Board of Appeals to allow them to review it based on the
new ordinance.
If the Council does not approve the variance ordinance amendment, the Council should
review the Hendrickx variance based on section 30-635 (found on page three of the staff
memo.)
N:\Public Bodies\City Council\Council RCA\Agenda Packet\08-15-2011\JB Variance cocer.docx
REQUEST FOR ACTION
TO ITEM NUMBER
Ci Council 5.1.
AGENDA SECTION MEETING DATE PREPARED BY
Communi Develo went Au st 15, 2011 erem Barnhart, Pla.nnin Mana er
ITEM DESCRIPTION REVIEWED By ~.
Request by City of Elk River for Ordinance Amendment to Robert Thistle, Interim City ~~`
Chapter 30 -Land Development Regulations, Article VI - Administrator
Zoning, Division 2, Administration and Enforcement, REVIEWED BY
Subdivision II -Appeals and Variances, Case No. V 11-02 -
Public Heari
ACTION REQUESTED
Adopt the draft ordinance amending section 30-635 related to variances.
BACKGROUND/DISCUSSION
The Minnesota Supreme Court issued a decision on a variance case in June 2010 that, in summary, stated
that if a property has a reasonable use, a variance should not be granted. This effectively made variances
very difficult to approve, if not impossible, as most properties have some use. For example, a setback
variance necessary for a room addition would not be approvable because the property already hosts a
house.
In response, in 2011 the Minnesota Legislature amended the variance standards, adopting a standard
closely resembling the standards in use by Minnesota Counties. The League of Minnesota Cities prepared
a draft ordinance for its members' use.
The ordinance as drafted incorporates those standards, recommendations by the League, and our own
ordinance. The main portion of that document is the cleaned up ordinance. Exhibit A of the attached
document shows the strikethroughs and additions of the existing ordinance.
The City Attorney reviewed the draft ordinance in late July. The Planning Commission held their review
on July 12, 2011 and no concerns were voiced.
FINANCIAL IMPACT
None
ATTACHMENTS
^ Planning Commission staff report
^ Draft ordinance
Action Motion by Second by Vote
Follow Up
N:\Depaztments\Communiry Development\Planning\Case Files\OA\OA 11-03 Ciry of ER -Variances\OA 11-03 Variance to CC 8-15-1 l.docx
~,
T
c`V°i ,,,r,, REQUEST FOR ACTION ~
Elk. ,.~,.:,
Raver
TO ITEM NUMBER
Plannin Commission 5.5
AGENDA SECTION MEETING DATE PREPARED BY
Plannin Items ul 12, 2011 erem Barnhart, P Mans er
ITEM DESCRIPTION REVIEWED By
Request by City of Elk River for Ordinance Amendment to
Chapter 30 -Land Development Regulations, Article VI - REVIEWED BY
Zoning, Division 2, Administration and Enforcement,
Subdivision 11-Appeals and Variances, Public Hearing -Case
No. V I I -02
ACTION REQUESTED
Staff recommends approval of the ordinance amendments as drafted.
OVERVIEW
In June of 2010, the Minnesota Supreme Court made a decision on a variance case, stating in basic terms
that if a property has a reasonable use, a variance should not be granted.. This effectively made variances
very difficult to approve, if not impossible.
In response, the Minnesota Legislature amended the variance standards, adopting a standard closely
resembling the standards in use by Minnesota Counties.
The proposed ordinance would delete section 30-635 (b) and replace it with the following text:
(b) A variance may be granted by the board only if it finds that all of the criteria are met:
(1) when they are in ha.rmonq with the general purposes and intent of the ordinance and
(2) when the variances are consistent with the comprehensive plan
(c) Variances may be granted when .the applicant for the variance establishes that there are Practical
Difficulties in complying with the zoning ordinance.
(~ "Practical Difficulties," as used in connection with the granting of a variance, means that
(1) the property owner proposed to use the property in a reasonable manner not permitted
by the zoning ordinance;
(2) the plight of the landowner is due to circumstances unique to the property not created bq
the landowner; and
(3) the variance, if granted, will not alter the essential character of the locality.
Economic considerations alone do not constitute practical difficulties. Practical difficulties include,
but are not limited to, inadequate access to .direct sunlight for solar energy systems.
The board of appeals and adjustments or the governing body as the case may be, may
not permit as a variance any use that is not permitted under the ordinance for property
in the zone where the affected person's land is located
Case File: OA i1-03
Page 2
Variance standards
> >
> >
The bolded text is not part of the ordinance recommended by the League. It is Staffs recommendation to
clear up expectations.
The full ordinance will be prepared for Council review.
ATTACHMENTS
^League of Minnesota Cities cover sheet
Action Motion by Second by Vote
Follow Up
N:\Departments\Community Development\Plarmittg\Case Files\OA\OA 11-03 City of ER -Variances\OA 11-03 Variances staff report to PC 7-
12-11.docx
CONNECTING & INNOVATING
SINCE 1913
2011 Variance Legislation
The changes, which are now in effect, may require some cities to change ordinances or
statutory cross-references.
After a long and contentious session working to restore city variance authority, the fmal version of
HF 52 supported by the League and allies was passed unanimously by the Legislature.
On May 5, Gov. Dayton signed 2012 Minnesota Laws, Chapter 29, amending Minnesota
Statutes, section 462.357, subdivision 6 to restore municipal variance authority in response to
Krummenacher v. City of Minnetonka, 783 N.W.2d 721 (Minn. June 24, 2010). The law also
provides consistent statutory language between Minnesota Statutes, chapter 462 and the county
variance authority of Minnesota Statutes, section 394.27, subdivision 7.
In Krummenacher, the Minnesota Supreme Court narrowly interpreted the statutory defmition of
"undue hardship" and held that the "reasonable use" prong of the "undue hardship" test is not
whether the proposed use is reasonable, but rather whether there is a reasonable use in the absence
of the variance. The new law changes that factor back to the "reasonable manner" understanding
that had been used by some lower courts prior to the Krummenacher ruling.
The new law was effective on May 6, the day following
the governor's approval. Presumably it applies to
pending applications, as the general rule is that cities are
to apply the law at the time of the decision, rather than at
the time of application.
Learn More
Read more about variances in:
The new law renames the municipal variance standard
from "undue hardship" to "practical difficulties," but otherwise retains the familiar three-factor test
of (1) reasonableness, (2) uniqueness, and (3) essential character. Also included is a sentence new
to city variance authority that was already in the county statutes: "Variances shall only be
permitted when they are in harmony with the general purposes and intent of the ordinance and
when the terms of the variance are consistent with the comprehensive plan."
In addition, the new law clarifies that conditions may be imposed on granting of variances if those
conditions are directly related to and bear a rough proportionality to the impact created bythe
variance.
Consult your attorney for advice oonceming specific situations.
LEAGUE OF MINNESOTA CITIES ]45 UAIIVERSITYAVE. WEST PxoNE: (651) 281-1200 FAX: {651) 281-1298
INSURANCE TRUST ST. PAUL. MN SS]03-2044 Toa FREE: (800) 925-1122 wea: www.I.irtc.oi~c
Land Use Variances: Frequently
Asked Questions
In evaluating variance requests under the new law, cities should adopt findings addressing the
following questions:
• Is the variance in harmony with the purposes and intent of the ordinance?
• Is the variance consistent with the comprehensive plan?
• Does the proposal put property to use in a reasonable manner?
• Are there unique circumstances to the property not created by the landowner?
• Wili the variance, if granted, alter the essential character of the locality?
Some cities may have ordinance provisions that codified the old statutory language, or that have
their own set of standards. For those cities, the question may be whether you have to first amend
your zoning code before processing variances under the new standard. A credible argument can be
made that that the statutory language pre-empts inconsistent Local ordinance provisions. Under a
pre-emption theory, cities could apply the new law immediately without necessarily amending
their ordinance first. In any regard, it would be best practice for cities to revisit their ordinance
provisions and consider adopting language that mirrors the new statute.
Attached are a collection of sample documents reflecting the 2011 variance legislation. The
attached samples include a draft ordinance, application form, and findings of fact template. While
the attached materials may contain provisions that could serve as models in drafting your own
documents, your city attorney would need to review prior to council action to tailor to your city's
needs. Your city may have different ordinance requirements that need to be accommodated.
If you have questions about how your city should approach variances under this new statute, you
should discuss it with your city attorney or contact Jed Burkett, LMC land use attorney, at
jburkett@,Imc.org or (651) 281-1247, or Tom Grundhoefer, LMC general counsel, at
tgrundho@Imc.org or (651) 281-1266.
Jed Burkett 06/11
2
Exhibit A
I Sec. 30-635..- Variances.
(a)
~.___
A variance may be requested only by the owner of the property
.(petitioner) to which the variance would apply. A variance may not
be granted which would allow the use of property in a manner not
permitted within the applicable zoning district, provided that the
board may grant a variance for the temporary use of asingle-family
'.dwelling as atwo-family dwelling. In granting any variance, the
!board may prescribe conditions to ensure substantial compliance
with this article and to protect adjacent property, including, without
imitation, an expiration date. The violation of any written
'condition shall constitute a violation of this article. No request fora.
variance may be resubmitted sooner than six months following a
denial. A variance shall become void within two years following
issuance unless substantial action has been taken by the petitioner
_._ _
in reliance thereon.
~)
A variance mar be granted by the board only if it finds that all of the_
following criteria are satisfied:
(1)the variance is in harmon~~ with the general purpose and intent of the-
'ordinance. ""'' , . 1 c r 1_ ~ ~ 1 , ,
(2)the variance is consistent with the comprehensive plan - , ' -
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Variances may be granted when the applicant for the variance established-
that there are Practical Difficulties in complying with the zoning
~.
ordinance.
)the property owner proposes to use the property in a reasonable
manner not permitted by the zoning ordinance due to setback, lot-
coverage, height requirements. ~ ~ ~ -
V CC 1l.1 V1Vl_)l.1 LICE
(4 2)'1'he special conditions and circumstances are not a conseciuence of
the petitioner's own action or inaction.
(~ 3) the variance, if granted, will not alter the essential character of the_
localit<~.
,~
(dl Economic considerations alone do not constitute practical difficulties Practical
difficulties include. but are not limited to, inadequate access to direct sunli hg t fox
solar energy systems.
Underlined -added
~i~lgl~ -deleted
Bolded -not part of the recommended language from the league
ORDINANCE _ _
CITY OF ELK RIVER
AN ORDINANCE OF THE CITY OF ELK RIVER AMENDING
SECTION 30-635 OF THE ELK RIVER, MINNESOTA, CITY CODE
RELATED TO VARIANCES
The City Council of the City of Elk River does hereby ordain as follows:
Section 1. That Section 30-635 of the City of Elk River Code of Ordinances,
titled Variances shallbe amended to read as follows:
Sec. 30-635. -Variances.
(a) A variance may be requested only by the owner of the property (petitioner)
to which the variance would apply. A variance may not be granted which
would allow the use of property in a manner not permitted within the
applicable zoning district, provided that the board may grant a variance for
the temporary use of asingle-family dwelling as atwo-family dwelling. In
granting any variance, the board may prescribe conditions to ensure
substantial compliance with this article and to protect adjacent property,
provided that the conditions are directly related to, and bear a rough
proportionality to, the impacts created by the variance. The violation of any
written condition shall constitute a violation of this article. No request for a
variance may be resubmitted sooner than six months following a denial. A
variance shall become void within two years following issuance unless
substantial action has been taken by the petitioner in reliance thereon.
(b) A variance may be granted by the board if it finds that:
(1) the proposed variance is in harmony with the general purpose and
intent of the ordinance; and
(2) the proposed variance is consistent with the City of Elk River
comprehensive plan
(c) Variances may be granted when the petitioner establishes that there are
Practical Difficulties in complying with the zoning ordinance. Practical
Difficulties means that:
(1)the petitioner proposes to use the property in a reasonable
manner not permitted by the zoning ordinance;
(2)The plight of the petitioner is due to circumstances unique to the
property not a consequence of the petitioner s own action or
inaction; and
(3) the variance, if granted, will not alter the essential character of
the locality.
n:\public bodies\city council\council rca\agenda packet\08-15-2011\variance ordinance draft].docx
(d) Economic considerations alone do not constitute practical difficulties. Practical
difficulties include, but are not limited to, inadequate access to direct sunlight for solar
energy systems.
Section 2. That this ordinance shall take effect upon adoption and shall be
published as provided by law.
Passed and adopted by the City Council of the City of Elk River this 15`" day of
August, 2011.
John J Dietz, Mayor
ATTEST:
Tina Allard, City Clerk